Martha Jane France v. Sandy Valley Local School District

• Decision Date: 30 January 1989
• Docket Number: 89-LW-0373,88AP090068
• Citation: Martha Jane France v. Sandy Valley Local School District, 88AP090068, 89-LW-0373 (Ohio App. Jan 30, 1989)
• Parties: Martha Jane FRANCE, et al., Plaintiffs-Appellants, v. SANDY VALLEY LOCAL SCHOOL DISTRICT, Defendant-Appellee.
• Court: Ohio Court of Appeals

Martha Jane FRANCE, et al Plaintiffs-Appellants, v. SANDY VALLEY LOCAL SCHOOL DISTRICT Defendant-Appellee.

No. 88AP090068.

89-LW-0373 (5th)

Court of Appeals of Ohio, Fifth District Tuscarawas

January 30, 1989

Civil Appeal from the Court of Common Pleas Case No. 87 CP 010024.

Robert J. Swan, Canton, for plaintiffs-appellants.

James J. Pringle, Miller & Kyler, New Philadelphia, for defendant-appellee.

Before PUTMAN, P.J., and MILLIGAN and WISE, JJ.

OPINION

MILLIGAN Judge.

SUMMARY JUDGMENT, CIV.R. 56 SLIP AND FALL, ICE

The Tuscarawas County Common Pleas Court granted summary judgment in favor of appellant in this ice-slip and fall case.

Plaintiff appeals assigning a single error, (which we extrapolate):

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE AS A MATTER OF LAW.

Construed most favorably to the appellant, the facts are as follows:

On January 13, appellant, a reporter, again went to Sandy Valley School for a meeting of the Board of Education. It was cold and there was snow on the grass, but the sidewalk was clean and appeared dry. As in prior occasions, the recessed entrance door lights were not lighted. It was 7:30 p.m. Approximately four feet from the building, appellant slipped and fell on ice on the sidewalk near the entrance. The patch of ice was large enough for her to stand on with both feet.

At the time she fell, she was "not looking at the ground particularly, walking with my head down, but I was taking normal precautions." Appellant's Dep. 31.

Snow and ice had been cleared earlier in the day with salt, causing a melting condition. The area was neither inspected nor attended after 2:30 p.m. on the day of the fall. After the fall, the area was salted.

The area where appellant fell is slightly upgrade toward the door.

The patch of ice was not "readily apparent."

Appellants concede that the duty owed by the school district to this invitee is "to exercise ordinary care to maintain his premises in a reasonably safe condition for the protection of such invitee(s)." Boles v. Montgomery Ward and Co. (1950), 153 Ohio St. 381, at 382. The duty is predicated on the owner's "superior knowledge of existing dangers or perils to persons going upon the property." Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 38 O.O.2d 294.

Here, appellants confront that consistent line of authority holding that, in Ohio, owners of premises owe no duty to invitees to remove "natural accumulations of snow and ice from private walks and steps." Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96. See also Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 40 O.O.2d 52, where invitee slipped and fell on sidewalk ice and snow; Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204, 503 N.E.2d 154, where the Supreme Court held no duty vis-a-vis natural accumulation notwithstanding a city ordinance requiring defendant to keep sidewalks clean (the majority rule); Bowins v. Euclid General Hospital (1984), 20 Ohio App.3d 29, 484 N.E.2d 203, couching duty in terms of ice and snow creating "a condition substantially more dangerous to an invitee than he could reasonably anticipate;" Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 44 O.O.2d 196, a pre-comparative negligence case defining duty in terms of invitee assuming the risk; Norwalk v. Tuttle (1906), 73 Ohio St. 242, where concept of "natural elements" (natural v. unnatural accumulation) seems to have been born.®1¯

More recently the Supreme Court, speaking through Justice Clifford F. Brown, reaffirmed its commitment to the natural/unnatural accumulation thesis:

This court has repeatedly held that an owner of property is not liable for injuries to business invitees who slip and fall on natural accumulations of ice and snow The common thread running through these cases is the principle that the owner or occupier has a right to assume that his visitors will appreciate the risk and take action to protect themselves accordingly It is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate.

LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, --- N.E.2d ----, reversing the court of appeals reversal of summary judgment in favor of the owner.

See also the unanimous opinion in Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203.

Appellant seeks to distinguish these cases by arguing that the ice accumulation here was not "natural." She argues that the admitted freeze-salt/thaw-freeze cycle on the slightly slanted portion of sidewalk renders the accumulation "unnatural," a product of appellee's action and consequent inaction. She also argues that opening and closing of the door, with attendant escape of heat and return to freezing constitutes an unnatural phenomenon. For purposes of summary judgment, she argues that reasonable minds can differ on the issue of natural v. unnatural.

Appellee counters with a bevy of cases identifying accumulations of ice under similar circumstances as not "unnatural."

Unnatural accumulation must refer to causes and factors other than the inclement weather or low temperature, strong winds and drifting snow, i.e., to causes other than the meteorological forces of nature. By definition, then, the "unnatural" is the man-made, the man-caused; extremely severe snow storms or bitterly cold temperatures do not constitute "unnatural" phenomena.

Porter v. Miller (1983), 13 Ohio App. 93.

See also Lapatkovich v. City of Tiffin, supra; Kinkey v. Jewish Hospital Assn. of Cincinnati (1968), 16 Ohio App.2d 93, 242 N.E.2d 352, holding freeze-thaw cycle is a natural phenomenon following partial clearing of a hospital parking lot; Cox v. Kroger Co. (June 24, 1981), Hamilton App. No. C-8000523, unreported, where parking lot tire ruts held "natural" accumulation; Vanover v. Toledo Trust Co. (Jan. 1, 1985), Lucas App. No. L-84-272, unreported, where invitee fell on ruts and ridges in parking lot no breach of duty; Jackson v. Holiday Inns (Feb. 9, 1982), Franklin App. No. 80-AP-914, unreported, where invitee fell on icy sidewalk; Friedman v. PBS Associates (June 10, 1985), Stark App. No. CA-6542, unreported, where invitee fell on ice from freeze-thaw cycle covered with snow in commercial parking lot.

Where the ice is accumulated as a direct consequence of the defendant's affirmative actions, such accumulation can be held "unnatural." Tyrell v. Investment Assn., Inc. (1984), 16 Ohio App.3d 47, 474 N.E.2d 621, where ice accumulated from a dripping canopy was "non natural," and presented a jury question in this comparative negligence case, (Hon. Thomas Patton dissenting); McCave v. City of Canton (1942), 140 Ohio St. 150, where flow from a downspout may create a nuisance if notice of hazard is proved.

Natural/unnatural accumulation of ice. From a cosmic examination of slip and fall cases, it appears that as a matter of historic public policy a special exception to standard negligence law has been carved out where the injury is sustained on ice and/or snow. The landowner, proprietor is extended an additional, threshold protection against random exposure to invitees who slip and fall on ice. Thus, if the accumulation is "natural," analysis ends and the proprietor is excused as a matter of law from liability to the injured invitee. On the other hand, if the accumulation is determined to be "unnatural," the natural/unnatural dichotomy is no longer determinative and the case rests upon principles of negligence applicable to all slip and fall cases.

A minority of states relieve a landlord, as a matter of law from the duty to remedy natural conditions, such as snow and ice on common approaches. [The "Massachusetts Rule," see Woods v. Naumkeag Steam Cotton Co., 134 Mass 375 (1883) ]. Another line of restrictive cases relieved the landlord from any obligation to light common hallways, except under exceptional circumstances. Both these rulings involve the fixing of arbitrary standards of care in a way that is disappearing generally throughout the field of...